Wednesday, April 22, 2009

The women who contribute thoughtful essays to this crime and justice site are serious professionals who grapple with profound and controversial legal questions. Hopefully they'll indulge me for considering a relatively frivolous legal issue today.

Some are honestly wondering about the legal ramifications of Madonna's recent fall from a horse, which her publicist blamed on an aggressive paparazzo. Her injuries, thank goodness, don't seem serious. But the incident offers a chance for a bit of exposition and education on the laws of personal injury. Can she sue? Would she win? Could she collect? The answers are sure, maybe, and probably not.

Can she sue?

Anyone with a hundred-dollar bill can file a lawsuit. The Material Girl didn't earn that moniker for nothing, so this one is a gimme.

Would she win?

Assuming that what her publicist says is true -- a photographer jumped from some bushes and scared her steed -- she'd have a pretty good case. If it came down to a he-said-she-said debate, she could get to a jury with it, and the jury would decide who is telling the truth.

Everyone, everywhere, at all times, has a "duty" under the law to act as a reasonable person would act in the same situation. That legal standard is vague, and it's usually up to a jury, and not a judge, to decide whether someone's actions were reasonable under the circumstances. I don't think it requires anything more than common sense to know that startling a horse can cause injury to its rider.

The department that rendered aid to her is releasing its own opinion on the matter. I found their statements rather curious. If Madonna said nothing to them about the photographer, that is neither here nor there. In the usual trip-and-fall, there's no reason for a responder to deeply delve. "How did this happen?" "I fell from my horse." That's as much of a conversation as I'd expect to see reflected in a police report.

Could she collect?

Assuming the jury believed Madonna's version of the dustup and gave her, say, a small verdict to compensate for a few hundred dollars in medical bills and a day or two of mild pain and suffering, collecting would probably be a challenge.

The press says he was a freelancer. Since he had no regular employer that could also be held accountable for his actions, there would be no insured corporate deep pocket to shake down. As a private person, he might own a home and might have homeowner's insurance. But it probably isn't much, and it might not cover such a claim since it arose from his line of business. Most homeowner's policies have limits or exclusions when you're sued because of the work that you do.

Believe it or not, as a rule lawyers do not like to pursue the personal assets of tort defendants (unless they've done something particularly egregious, and even then, I don't know many lawyers who would push to collect personally from an uninsured or underinsured person). If the jury did slam the fellow with a large verdict, he would have the option of filing for bankruptcy and blowing out the judgment there.

So even if Madonna did win a lawsuit against the fellow, she'd probably have a devil of a time getting any money from him. That's not to say I wouldn't take the case. If she needs a lawyer to handle the claim, gosh, I'm available!

Bottom line: While Madonna has credibility problems in general and a lifestyle that most people disdain, the paparazzi aren't doing much better these days in the court of public opinion. Given all the times when some jerk of a photographer sued a star for some stupid dustup, it might be fun to see the shoe on the other foot.

13 comments:

There are some things that jurors just don't really care for and I doubt jurors have much love for annoyingly intrusive and increasingly dangerous papparazi. Ofcourse that does not mean jurors have any great liking for publicity seeking movie starlets.

The hordes of independent photographers surely do not act in a truly independent fashion. Tips of a star's intentions may be funneled to certain photographers by some photo agency anxious to buy any resulting shot from him. There is cooperation amongst teams of photographers with the use of blocking cars and stakeout areas. Yet it would be hard to defeat the legal defenses of independent contractor status for a photographer and independent photo agency for the purchaser of the shots. I don't really think that there would be any hesitancy to execute a judgement against some asset poor photographer, it might be unwise but I doubt any of the people involved would have moral scruples over it. Hollywood tends to lack such restraints anyway.

Some actor bring his newborn son home smeared shaving cream over their stakeout vehicle's windshield and things escalated a bit, resultng in an arrest. I have no idea why the DA took the case against the movie star to trial, I imagine all any lawyer would have to do is make sure it was a jury trial.

Civil liability for leaping out of the bushes at the approach of a horse and rider? Sure. What is the guy doing on a bridle path anyway? Sometimes these things are handled by smashing cameras or taking the photographer to some place where no one can hear screams too well and forcing him to eat his film. I think we will be seeing more of such "self help" solutions in the future.

Well, I did run the subject by a moderator prior to writing this. I got up pretty early to complete it. At least one person thought it a subject worth intelligent discussion. If you don't, I am truly sorry to disappoint you, but I ask you to consider how much you're paying to read this site (nothing), how much I'm paid to write for it (nothing), be gracious, and move on.

I'm sorry I didn't mean to offend you. I was under the impression that this site stayed away from celebrity issues. While I appreciate the time and effort you put into your article I can't help but wonder if this would have been better suited for the tabloids.

Besides the whole point of the COMMENT section is to post comments. I wasn't aware that negative comments weren't welcomed.

Cheryl, I was not offended at all. Your first comment was harsh but not unfair. It was not deleted. I was unsure whether the subject would be well received in the first place, which is why I ran it by an editor. Your comment shows we were wrong, at least as to one fan of the site. I offered you a sincere apology for your disappointment in the subject matter, and I did and do mean it.

That said, I've been blogging for four years now. Besides my own website, I've contributed essays to six other group blogs over the years. In my experience, few things drive away contributors faster than comments that are (a) anonymous AND (b) negative AND (c) personally directed to the producer of the content or other commenters. Once the comment sections devolve to this, there are NEVER further comments on the original post itself. The conversation ends, contributors are discouraged from continuing, and the website dies.

And that's enough of this for today. The sun is shining, my two little boys want to go out to play, and I wish you a good day too.

Laura, I enjoyed your blog post. Madonna's recent misfortune was merely the springboard for thought of how one's actions can lead to being involved in litigation. Just because it wasn't heavy hitting doesn't mean it wasn't thought provoking. While I don't care about many things in the tabloids about overpaid entertainers, I know that Madonna's misfortune was merely an example to explain a bit about lawsuits and having a winning case.

If the horse in the picture was the actual horse she was riding and not something photoshoped. it looks to be a Saddlebred. They are high strung to begin with. But most people are ignorant around horses and even the most calm horse can be spooked if something unexpected occurs. Like idiots popping out of bushes.

Its probably a stock photo of a horse but even if it is a notoriously high-strung breed a rider is entitled to right-of-way on a bridle trail and to be free of idiots who suddenly emerge into view and startle the horse. It is particularly galling to have the startle incident be motivated by financial gain. True, all these rock stars are rather tiresome and often lead lives wherein their veracity on any matter would clearly be doubted, but that does not give someone lurking in the bushes a free ride because his victim is obnoxious or the horse is known to be skittish.

The charity 'Raising Malawi' (PR firm) founded by Madonna AND TWO OTHERS over three years ago held fund raisers for over two years before finally getting registered as a non-profit. In other words, Madonna and the others were free to squander the lion's share of that funding any way they saw fit for those first two years. In fact, they still havn't accounted for the 3.7 million raised from a single event in the fall of '07' (The opening of a Gucci flagship store in Manhattan.). She also pleaded with her fans worldwide for donations along the way. In the meantime, she toured the world to promote her latest CD and raked in another $280,000,000 gross in just over 12 months. To date, the basic financial info for 'Rasing Malawi' still hasn't been posted on the website or anywhere else. The 'progress' page only tells of the collective works by over 20 seperate charities. Each of which have their own sources of funding and may have recieved some sort of promotion or support from 'Raising Malawi' in order to be considered 'partners'. But no indication is made how much of their funding came from 'Raising Malawi' or how much of their progress if any could be directly attributed to 'Raising Malawi'. The fans/donors have no clue how many millions of dollars were raised in that first two years, no clue how much Madonna herself chipped in, and no clue how the money was spent before they finally registered as a non-profit. No clue what fraction of funding or works listed on that 'progress' page could be directly attributed to 'Raising Malawi'. Nothing to go on but the vague word of Madonna. The vague and very misleading word of Madonna. For example: She states in her latest promotional video that she will match any contributions made to her charity (PR firm) "dollar for dollar". However, there is a disclaimer posted on the website for 'Raising Malawi' that Madonna's total contribution will not exceed $100,000. Thats not per donation. Thats a maximum of $100,000 TOTAL. Less than a single days pay for Madonna. Also much less then she will surely rake in by promoting her own CDs, DVDs, and 'for profit' merchandise through this massive worldwide publicity stunt. So I called the office of 'Raising Malawi' in an attempt to verify some sort of efficient financial operation (310) 867-2881 or (888) 72-DONOR). These details are ALWAYS made available by legitimate charities to their potential donors. But not in this case. I got nothing but recorded messages and hangups. So I did some research on my own. 'Rasing Malawi' still hasn't been given any kind of rating by ANY independent charity watchdog like Charitywatch.org. The vast overwhelming majority of 'celebrity' foundations never are. In general, they are inneficient and riddled with corruption. Like the promotion of CDs, world tours, commercial websites, entire lines of jewelry (not just the single piece from which proceeds are donated), and high end fashion retail flagship stores. Celebrity foundations are also notorious for squandering much of their funding on private jet rides and super high end accomodations for their managers, PR crews, and celebrity figure heads. Its legal even for a nonprofit but not noble or efficient by any stretch of the imagination. In general, 'celebrity' foundations are a twisted inefficient mutant of charity, self-promotion, exotic travel, and PR crap. Still, they compete for funding with more efficient legitimate charities who do more work with less money. The celebrity figure heads often disregard the primary donors, co-founders, and managers, take personal credit for any collective work done, and seek maximum publicity shortly before or after the release of their own commercial projects. Its a sham. So if its not rated, then don't support it. Instead, support a top rated charity like any of those given high ratings at Charitywatch.org.